Sunday, June 9, 2013

Colorado officials correctly surmised a new law requiring marijuana magazines to be hidden away is unconstitutional.

Colorado's bureaucracy appears to have exhaled with Thursday's declaration that a law requiring marijuana magazines to be regulated like pornography is unconstitutional.

The provision of law in question was tucked into a larger bill passed this year regulating marijuana, legislation that contained many sensible and needed regulations on the sale of recreational pot, which voters approved last year.

We supported the overall bill.

But a fly in this ointment was a requirement in the bill that "magazines whose primary focus is marijuana or marijuana businesses are only sold in retail marijuana stores or behind the counter in establishments where persons under twenty-one years of age are present."

That's right. Magazines like High Times that were openly available in bookstores, convenience stores and other businesses prior to the law were now to be treated like pornography -- sold only in specialty stores or behind the counter at other stores. (And who would decide whether a magazine's "primary focus" is marijuana or pot businesses?)

The government can regulate the time, place and manner of free speech if there is compelling governmental interest, but it can't just bar minors from being able to look at or purchase certain publications unless we're talking about obscenity.

We said when the law was passed that it was not only dumb but obviously unconstitutional, and it didn't take long for attorneys representing pot-themed publications and booksellers to challenge the law in federal court on First Amendment grounds.

The intent of the law no doubt was to keep marijuana-themed publications out of the hands of impressionable young people, lest they be tempted to try pot before turning 21.

But as Mark Silverstein, legal director of the Colorado ACLU pointed out to Westword magazine, as written, the law actually could have been applied to publications aimed at discouraging marijuana use also.

In any case, though, did the state really want to be publicly bested in court by High Times, The Daily Doobie and Hemp Connoiseur?

Obviously not, as the state Thursday said it would ask that the case be dismissed because of "mootness."

The Marijuana Enforcement Division itself declared the law unconstitutional, an appraisement shared by Attorney General John Suthers. The state Thursday issued an emergency rule barring enforcement of the regulation, flatly acknowledging "such a requirement would violate the United States Constitution, the Colorado Constitution and (state law)."

Carolyn Tyler, spokeswoman for Suthers, stated the painfully obvious. "We support the laudable goal of keeping retail marijuana out of the hands of those under 21, but that has to be consistent with the Constitution," she said.

Former U.S. Interior Secretary Ken Salazar will begin his post-political life as a partner at the same law firm that represented British Petroleum during the Deepwater Horizon oil spill off the gulf coast -- an environmental calamity for which Salazar was sharply criticized for not keeping offshore drillers on a tight enough leash.

Former U.S. Interior Secretary Ken Salazar

WilmerHale, which has offices in Boston, New York and Washington, D.C., represented the company in 15 congressional hearings and in investigations by the Department of Justice, the SEC, the National Oil Spill Commission, the Chemical Safety Board, and the National Academy of Engineers.

"Our job basically is to keep the boot on the neck of British Petroleum," Salazar said at the time, after he had become the face for what many critics saw as a failure of governmental oversight and lax policies that contributed to the disaster.

Environmental groups called for his firing and he was grilled before Congress, where he promised to overhaul the agency responsible for monitoring offshore oil drilling. That criticism prompted the government to take a hard line with BP, as Salazar's "boot on the neck" comment illustrated.

In his new position, Salazar promised that he wouldn't benefit from BP by joining the legal firm, telling the Denver Post that WilmerHale will separate the money it made from the company and that none will be used to pay him.

"I am not going to represent BP, and I'm not going to make any money from BP now or ever," he told the paper.

In a statement posted on its website, WilmerHale said that Salazar will provide "legal, strategic and policy advice to national and international clients, particularly on matters at the intersection of law, business and public policy. He will draw on his deep experience in energy, environmental and natural resources, and tribal issues to assist the firm's clients."

The company is opening a Denver office to be anchored by Salazar, a native Coloradoan who served as state attorney general and as U.S. Senator from 2004-2008.

"I am proud to join WilmerHale, one of the nation's top law firms," Salazar said in the statement. "It handles some of the most complex legal matters, and has a longstanding commitment to public service, civil rights and social justice. I look forward to leading WilmerHale's entry into the Rocky Mountain region, which is integral to the growing national and global economy."

WilmerHale has represented a wide array of clients, including former presidents Richard Nixon, Jimmy Carter and Bill Clinton; major corporations like HSBC, Chrysler Group and Proctor & Gamble; and pro bono clients like the country of Sierra Leone, Guantanamo Bay prisoners and the Coalition for the Homeless.

Saturday, June 1, 2013

The average medical claim from a motorcycle crash rose by more than one-fifth last year in Michigan after the state stopped requiring all riders to wear helmets, according to an insurance industry study. Across the nation, motorcyclists opposed to mandatory helmet use have been chipping away at state helmet laws for years while crash deaths have been on the rise.

For more than 40 years, Michigan required all motorcycle riders to wear helmets. State legislators changed the law last year so that only riders younger than 21 must wear helmets. The average insurance payment on a motorcycle injury claim was $5,410 in the two years before the law was changed, and $7,257 after it was changed -- an increase of 34 percent, the study by the Highway Loss Data Institute found.

After adjusting for the age and type of motorcycle, rider age, gender, marital status, weather and other factors, the actual increase was about 22 percent relative to a group of four comparative states, Illinois, Indiana, Ohio and Wisconsin, the study found.

"The cost per injury claim is significantly higher after the law changed than before, which is consistent with other research that shows riding without a helmet leads to more head injuries," David Zuby, chief research officer for the data institute and an affiliated organization, the Insurance Institute for Highway Safety, said. The data institute publishes insurance loss statistics on most car, SUV, pickup truck and motorcycle models on U.S. roads.

While other studies have shown an increase motorcycle deaths after states eliminate or weaken mandatory helmet requirements, the industry study is the first to look specifically at the effect of repealing helmet requirements on the severity of injuries as measured by medical insurance claims, Zuby said.

Some states have sought to mitigate the repeal or loosening of mandatory helmet laws by setting minimum medical insurance requirements, but "that doesn't even come close to covering the lifelong care of somebody who is severely brain-injured and who cannot work and who is going to be on Medicaid and a ward of the state," Jackie Gillan, president of Advocates for Highway and Auto Safety, which backs mandatory helmet requirements for all riders, said.

Jeff Hennie, vice president of the Motorcycle Riders Foundation, dismissed the study, saying the insurance industry views helmets as "the silver bullet that's going to change the landscape of motorcycle safety." He said insurers are upset because "life has gotten more expensive for them and they have to pay out more."

"The fact is our highways are bloody," Hennie said. "This (the Michigan helmet law change) doesn't make helmets illegal. ... No one is forcing anyone to ride without a helmet."

Vince Consiglio, president of American Bikers Aimed Toward Education of Michigan, blamed the increase in the severity of injuries on bikers who don't take safety courses required to obtain a special motorcycle license. He said bikers without motorcycle licenses have made up an increasingly larger share of fatalities and injuries in recent years.

But Gillan said the study "clearly shows there is no such thing as a free ride, and the public is paying the cost for this."

There's no way to know how many of the Michigan claims involved motorcyclists not wearing helmets, the study said. But another recent study by the University of Michigan's Transportation Research Institute found a significant increase in motorcyclists involved in crashes who weren't wearing helmets after the law changed. From April 13, 2012, the first full day after the change took effect, through the end of the year, 74 percent of motorcyclists involved in crashes were wearing helmets, compared with 98 percent in the same period for the previous four years, the study found.

Nationally, motorcycle deaths have risen in 14 of the past 15 years, with more than 5,000 deaths last year, according to an analysis by the Governors Highway Safety Association of preliminary 2012 data. That's the highest proportion motorcycles have ever represented of overall traffic deaths, more than 14 percent, the association said.

Currently, 19 states and the District of Columbia require all motorcyclists to wear a helmet, 28 states require only some motorcyclists -- usually younger or novice riders -- to wear a helmet, and three states have no helmet use law. States have been gradually repealing or weakening mandatory helmet laws for nearly two decades.

In 1967, to increase motorcycle helmet use, the federal government required that states enact helmet laws in order to qualify for certain federal safety programs and highway construction aid. The federal incentive worked. By the early 1970s, almost all states had motorcycle helmet laws that covered all riders. In 1976, Congress stopped the Transportation Department from assessing financial penalties on states without helmet laws, and state lawmakers began repealing the statutes.

In 1991, Congress created new incentives for states to enact helmet and seat belt laws, but reversed itself four years later.

The National Highway Traffic Safety Administration, which sent observers to states last year to count how many motorcyclists wore helmets, found that 97 percent of motorcyclists in states with universal helmet laws were wearing helmets compared with 58 percent of motorcyclists in states without such coverage.

The new health care law is injecting more competition into health insurance markets nationwide, drawing additional insurance companies into states long dominated by a few carriers, Obama administration officials said Thursday.

Such competition offers the prospect of more choices for millions of consumers who will be shopping for insurance this fall. Companies entering the market could also put downward pressure on prices, partly offsetting factors that tend to increase premiums. The competition could pose new challenges to Blue Cross and Blue Shield plans, which dominate the individual insurance markets in many states.

The administration gave a snapshot of applications filed by insurers in 19 states where the new insurance markets, or exchanges, will be run entirely by the federal government. The data was preliminary and incomplete and could not be independently verified. It was supplemented by federal officials with information from California and several other states that have released data on applications from insurers.

These states account for 80 percent of the seven million people expected to obtain coverage next year through the government-run markets being established under President Obama’s health care law.

The 2010 law promotes competition by standardizing many features of insurance policies and creating Web sites where consumers can compare costs and benefits. The Web sites will also make it easier for insurers to market their products.

"The majority of states will have new health insurance choices that are not available today," the administration said in a memorandum summarizing its analysis. In about three-fourths of states with exchanges run by the federal government, it said, "at least one new insurance company intends to enter the market."

More than 120 insurance companies have filed applications with the federal government, and it appears that most consumers will be able to choose from health plans offered by five or more insurers, the administration said.

One-fourth of insurance companies proposing to offer coverage in these federal exchanges have recently entered the individual market, the administration said.

Experts on health policy said the filing of applications was only the beginning of a race to the market for insurers. After scrutinizing applications, federal and state officials could demand changes in benefits and rates, and insist that insurers expand their proposed networks of doctors and hospitals.

Paul B. Ginsburg, the president of the nonpartisan Center for Studying Health System Change, said: "The individual insurance market is now up for grabs. Blue Cross plans will face a lot more competition. Many products sold in the insurance exchanges will have more limited networks of doctors and hospitals than has been the norm in employer-based coverage."

Moreover, Mr. Ginsburg said: "Consumers will receive federal subsidies based on their income, not on the plans they choose. That creates a strong incentive for consumers to seek plans with lower premiums."

Federal officials said that consumers shopping for private insurance in the exchanges would often benefit from the same type of competition Medicare patients see when choosing prescription drug plans. Many industry experts doubted that stand-alone drug coverage could succeed, but Medicare beneficiaries now have a choice of more than 20 drug plans in every state, and the average premiums have been relatively stable in the last few years.

May 3 was the deadline for insurers to file applications to participate in markets run by the federal government, but administration officials said they were still trying to expand the options available in states where they wanted more competition.

The upbeat assessment by federal officials follows months of criticism by Republicans and some Democrats who said the administration had fumbled the rollout of the new health care law. Senator Mitch McConnell of Kentucky, the Republican leader, predicted recently that the law would be"the biggest issue" in Congressional elections next year.

In at least 31 states, administration officials said, consumers will be able to sign up for a new kind of product offered by private insurers under contract with the federal Office of Personnel Management, the agency that arranges health benefits for federal employees.

These multistate plans will be available in all states by 2017. They were included in the health care law as a substitute for a pure government-run insurance program -- the "public option" sought by liberal Democrats and reviled by Republicans.

The health care law classifies insurance into several categories, based on the generosity of coverage. In its preview of the market in 2014, the administration said that "consumers will have multiple options in each tier of coverage: catastrophic, bronze, silver, gold and platinum."

On average, it said, insurers intend to offer more than 15 health plans per state, with some being offered in just part of a state.

People are generally enrolled in plans for a year at a time, but can switch if they want lower costs or more extensive coverage in later years.

Starting in October, consumers will be able to enroll in new health plans, for coverage beginning on Jan. 1, 2014, when most Americans will be required to have insurance.

For years, the American Medical Association has complained that "highly concentrated health insurance markets are a problem for physicians," and Mr. Obama says they are an even bigger problem for consumers.

"In 29 states," the administration's memo said, "one insurer covered more than 50 percent of all enrollees in the individual insurance market" last year. In 11 states, it said, the largest two insurers accounted for 85 percent or more of the individual market.